Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation
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Volume 26 Issue 2 Article 8 1981 Constitutional Law - Privacy - Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation Kathleen D. Yesenko Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Constitutional Law Commons, and the Evidence Commons Recommended Citation Kathleen D. Yesenko, Constitutional Law - Privacy - Invasion of Privacy Justified Where Hospital Records Are Sought for Grand Jury Investigation, 26 Vill. L. Rev. 499 (1981). Available at: https://digitalcommons.law.villanova.edu/vlr/vol26/iss2/8 This Note is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Yesenko: Constitutional Law - Privacy - Invasion of Privacy Justified Wher 1980-1981] Recent Developments CONSTITUTIONAL LAW-PRIVACY-INVASION OF PRIVACY JUSTIFIED WHERE HOSPITAL RECORDS ARE SOUGHT FOR GRAND JURY INVESTIGATION. In re June 1979 Allegheny County Investigating Grand Jury (Pa. 1980) To aid in its investigation into the use and misuse of county facilities, funds, personnel, and equipment, the Allegheny County Investigating Grand Jury 1 issued a subpoena duces tecum to West Allegheny Hospital. 2 The subpoena ordered the hospital administrator to produce tissue reports prepared for the hospital by Pittsburgh Pathology and Toxicology Laboratory, Inc. (P.P. & T.) 3 in order to determine whether any of P.P. & T.'s testing was performed at county 1. In re June 1979 Allegheny County Investigating Grand Jury, - Pa. -, -, 415 A.2d 73, 75 (1980). The grand jury was impanelled pursuant to the Pennsylvania Investigating Grand Jury Act. Id. at - n.1, 415 A.2d at 75 n.l. See 19 PA. CONS. STAT. ANN. §§ 265-278 (Purdon Supp. 1980-1981). In Pennsylvania, an investigating grand jury is convened where it is deemed "necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury." Id. § 267(b). Once the convening of a grand jury is deemed necessary, its power includes, but is not limited to, the power of subpoena, the power to obtain initiation of civil and criminal contempt proceedings, and the power to issue a presentment with regard to any person who appears to have com- mitted a criminal offense. Id. § 271. The grand jury system generally offers the protection that persons involved in grand jury proceedings, with only limnited exceptions, "shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret." Id. § 272(b). The grand jury is subject as well to the continuous supervision of a judge. Id. §§ 266-275. 2. - Pa. at -, 415 A.2d at 75. The subpoena was issued to West Alle- gheny Hospital and served upon its administrator, Dr. Mario J. Lanni. Id. 3. Id. Prior to the commencement of the investigation, West Allegheny Hospital had sent tissue samples of various patients to P.P. & T. Id. Results of testing on the samples were provided by P.P. & T. in reports which included the patient's name and address, an indication of the type of tissue submitted, a list of tests performed, and medical conclusions possible from the test results. Id. P.P. & T. claimed that it did not possess its own copies of the reports. Id. at - n.2, 415 A.2d at 75 n.2. At an earlier stage in the investigation, pursuant to another subpoena, the validity of which was not contested, the hospital administrator appeared before the grand jury and delivered correspondence, cancelled checks, invoices and itemized billings relating to these tissue samples. Id. at -, 415 A.2d at 75. From this material, the grand jury determined the names and addresses of patients whose tissue samples were tested by P.P. & T., the type of tissue sub- mitted, and the date the sample arrived at P.P. & T.'s lab. Id. (499) Published by Villanova University Charles Widger School of Law Digital Repository, 1981 1 Villanova Law Review, Vol. 26, Iss. 2 [1981], Art. 8 VILLANOVA LAW REVIEW [VOL. 26: p. 499 facilities. 4 The hospital administrator informed the grand jury legal advisers that the hospital would not comply with the subpoena. 5 After hearing testimony and argument on the hospital's motion to quash the subpoena,6 the supervising judge denied the motion and ordered compliance. 7 The hospital administrator refused to comply with the subpoena, arguing that the records sought were confidential and claim- ing that their disclosure would invade the patients' right of privacy.8 He was then adjudged to be in civil contempt of court.9 On appeal, the Supreme Court of Pennsylvania affirmed, 10 holding that although disclosure of medical data could, under certain circumstances, threaten a patient's constitutional right of privacy, this right is adequately pro- tected by the terms of the Investigating Grand Jury Act. In re June 1979 Allegheny County Investigating Grand Jury, - Pa. -, 415 A.2d 73 (1980). While the Constitution of the United States does not specifically mention a right of privacy," the United States Supreme Court has recognized that "a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution." 12 This 4. Id. 5. Id. at -, 415 A.2d at 75-76. Initially, counsel for the hospital asserted that compliance with the subpoena would breach hospital confidentiality, and would be unreasonably time-consuming and expensive for the hospital. Id. at -, 415 A.2d at 76. Counsel for the hospital requested disclosure of the relevance of the sub- poenaed materials to the investigation and the Commonwealth responded by submitting an affidavit in order to make a preliminary showing that the infor- mation sought was relevant to the investigation. Id. at -, -, 415 A.2d at 76, 78. After reviewing the Commonwealth's affidavit, counsel for the hospital moved to quash the subpoena. Id. at -, 415 A.2d at 76. For the procedures to be followed in determining the relevance of information sought to be sub- poenaed, see Appeal of Hawthorne, - Pa. -, -, 412 A.2d 556, 560-61 (1980). See also In re Grand Jury Proceedings, 486 F.2d 85, 93 (3d Cir. 1973). 6. - Pa. at -, 415 A.2d at 76. 7. Id. at -, 415 A.2d at 76. 8. Id. The hospital administrator also claimed that the information was protected by the physician-patient privilege. Id. For a discussion of this privilege, see notes 58-61 and accompanying text infra. 9. - Pa. at -, 415 A.2d at 76. 10. Id. at -, 415 A.2d at 77-78. Chief Justice Eagen, writing for the majority, was joined by Justices O'Brien and Kauffman. Justices Roberts and Nix filed concurring opinions. Justices Larsen and Flaherty filed dissenting opinions. 11. See Roe v. Wade, 410 U.S. 113, 152 (1973). The protection of a person's general right to privacy "is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S. 347, 350-51 (1967) (footnote omitted). State tort law recognizes four distinct privacy invasions: intrusion upon individual seclusion, representa- tion of an individual in a false light, public disclosure of private facts, and appropriation of another's name or likeness for commercial purposes. Prosser, Privacy, 48 CALIF. L. REV. 383, 389-407 (1960). 12. Roe v. Wade, 410 U.S. 113, 152 (1973). The principle of privacy as a constitutional right was first suggested in a law review article by Samuel Warren https://digitalcommons.law.villanova.edu/vlr/vol26/iss2/8 2 Yesenko: Constitutional Law - Privacy - Invasion of Privacy Justified Wher 1980-1981] RECENT DEVELOPMENTS constitutional right of privacy 13 has been held to include protection against the disclosure of personal information.14 Such protection, how- ever, is not absolute and may be overcome by the assertion of various state interests.' 5 Although the constitutional protection afforded per- and Louis Brandeis. Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). See Warren & Brandeis, The Right to Privacy, 4 HARv. L. REv. 193 (1890). In that article, the authors articulated a "general right of the individual to be let alone." Id. at 205. Supreme Court recognition of a constitutional right of personal privacy dates perhaps as far back as 1891. Roe v. Wade, 410 U.S. at 152, citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). See also Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 50 S.E. 68, 69 (1905) (right of privacy derived from natural law and guaranteed by United States and Georgia Constitutions). In Roe v. Wade, the Supreme Court, examining the interests which have been determined to be encompassed by the right of privacy, noted that only personal rights that can be deemed "fundamental" or "im- plicit in the concept of ordered liberty" are included in this guarantee of personal privacy ... [and] that the right has some extension to activities relating to marriage, procreation, contraception, family rela- tionships, and child rearing and education. 410 U.S. at 152-53 (citations omitted). Protection of these interests has been found to be rooted in various con- stitutional provisions. The right to satisfy one's intellectual and emotional needs in the privacy of one's own home, for example, is protected by the first amendment. Stanley v. Georgia, 394 U.S. 557, 564-65 (1969). The right to educate one's children as one pleases is protected by the first and fourteenth amendments.